The Pacific Legal Foundation's Timothy Sandefur talked with KFBK's Tom Sullivan today about the eminent domain "reform" bill proposed yesterday. You can listen online here; the conversation takes place about a fifteen minutes before the end of the show. (Be patient; it takes a while to load.)

Prof. Somin of the Volokh Conspiracy has a post here on the bill unveiled yesterday. The AP has this story, which appeared, among other places, in the San Jose Mercury News. And the Sacramento Bee's Dan Walters has this column. Excerpt:

Critics of eminent domain are back with a new ballot measure declaring, "private property may not be taken or damaged for private use." And this time it has the support of some groups that opposed Proposition 90, such as the California Farm Bureau.

Local officials are worried that with last year's narrow loss, a simpler measure without Proposition 90's baggage could pass. Therefore, the League of California Cities and its allies have created Californians for Eminent Domain Reform and are pursuing a two-pronged strategy. They've written their own initiative that would bar seizure of owner-occupied housing for private purposes -- albeit with some loopholes -- and a legislative measure that would duplicate the initiative in many respects but also include businesses with 25 or fewer employees under its protections.

Assemblyman Hector De La Torre, D-South Gate, unveiled the latter on Monday, declaring it to be "comprehensive and fair." Both are questionable characterizations since it's very limited and unfair on its face by treating different kinds of property differently. A large multifamily project with just one owner-occupied unit would be protected from seizure, for example, while another occupied by renters could be seized....

It's likely that both measures will appear on the ballot next year -- and that voters will be vastly confused over who's truly for what and who's not.

Today, California Assemblyman Richard De La Torre unveiled a proposal to reform eminent domain in California. Unfortunately, it would actually provide virtually no protection to California’s property owners. You can read the proposal here.

Among its many loopholes, the proposal protects only "owner occupied residences," not apartment buildings or leased homes. Of course, apartments and leased homes are more often occupied by poorer people or those with less political influence—that is, they are more often targets of eminent domain abuse. Moreover, homes are very rarely taken for transfer to private developers, since developers are more interested in property in business areas, not in residential areas.

Second, the proposal also protects "small businesses," but only those small businesses that employ fewer than 25 people—when California law defines a small business as employing fewer than 100 people. So a great many small businesses in California would not qualify for protection.

Indeed, the proposal goes on to say that small businesses can still be taken as part of a "comprehensive plan to eliminate blight." As readers of this blog know well, "blight" is defined so vaguely in California law (and the laws of most states) that virtually any neighborhood can be declared "blighted." (For instance, one element of the definition of blight is "factors that substantially hinder the economically viable use of property." What does that mean? Whatever the city council says it means.)

The proposal also declares that homes and small businesses and all other property can be condemned for "private uses incidental to...[a] Public work or improvement."That means (as I mentioned in this blog post) that if the government built, say, a "civic center"or a branch of the public library into a shopping center (like Victoria Gardens in Fontana) it could then condemn surrounding property and transfer it to private developers.

Notice that the proposal doesn't define "private person." This is important, because the proposal prohibits the taking of property for the benefit of "private persons"!

Also, the proposal would not apply when the government takes property to "prevent[] serious, repeated criminal activity." So if the city council thinks that replacing an apartment building with a shopping mall would cut down on shoplifting, then it could still take homes—apartments are homes—and transfer the property to private developers.

What's more, the proposal declares that "he words and phrases" that are "not defined in subdivision (h)," would be "nterpreted in a manner that is consistent with the law in effect on January 1, 2007," which suggests that this proposal could make Kelo a part of California constitutional law, which it is not, now. Right now, Kelo is only federal law. But if the term "public use" is defined "in a manner that is consistent" with Kelo, then the California Constitution would also enshrine Kelo.

Finally, the proposal does not provide for attorney's fees, which means that property owners would find it prohibitively expensive to stand up for their property, just as they do now.

The bottom line is this: the proposal would provide very little protection for California's homeowners, virtually no protection for California's small business owners, and literally no protection for churches, farms, investment property, apartment buildings, and so forth.

By the way, who is the "Californians for Eminent Domain Reform"? If you call the number, it's the PR firm that ran the No on Prop. 90 campaign!

Nollan involved an issue of major importance to all property owners: under what circumstances can the government demand that you give up something (land, money, or other rights) in exchange for a building permit? Governments routinely demand such exactions, and the amounts are steadily rising. The result is higher housing costs for everyone, and more obstacles in the way of the American Dream. Moreover, government is demanding different sorts of things from property owners. In a case I'm currently litigating in federal court in San Diego, the government demanded that the Griswold family give up their constitutionally guaranteed right to vote on property taxes (technically, assessments) in exchange for a building permit! As I write in the article,

Exactions like these are symptoms of government run wild. Bureaucrats given extraordinary power to dictate how landowners can use their property are able to indulge their most opulent "visions" at the expense of citizens who have little political influence and little chance to protect themselves in court. Nothing could be more contrary to the purposes behind the Constitution. It was written to protect us against the ambitions of bureaucrats who would violate our rights in the pursuit of their plans. That's why the Supreme Court has explained that the Fifth Amendment prohibits government "from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Yet government officials can use the permitting procedure to increase government revenue — or to provide public goods — without imposing politically unpopular taxes. By shifting the cost of government policies onto individual landowners, politicians can look like bold innovators without ever revealing the true injustice, and the true cost, of their policies.

The Pacific Legal Foundation is delighted to announce its victory, alongside our friends at the Institute for Justice, in defending homeowners in Riviera Beach, Florida. The city had tried to evade the nation's strongest new law prohibiting the use of eminent domain, but after lawsuits were filed by PLF and IJ, the city abandoned its efforts to condemn as much as 400 acres of the city for the benefit of a private developer. More info here. And here is IJ's press release.

This article outlines the debate in Princess Anne, MD, over how to acquire land needed to expand airport runways. The government officials quoted in the article seem reluctant to use eminent domain, though it's made clear that the threat of such action is hanging over local property owners.

A somewhat related issue is what happens to property owners who get to keep their homes after runway extensions, but suddenly find the air above their houses filled with low-flying planes. There's a doctrine called 'avigation takings' that addresses this, and in some jurisdictions it requires payment to the homeowners when the increased noise from the new air traffic results in a diminution in the value of the property.

The matter is addressed in passing at the end of the linked article. It will be worth watching to see if the avigation takings doctrine is implicated formally when the proposed expansion does happen.